By Jonathan Blanks September 17
Note: This is a guest post from Jonathan
Blanks, a research associate at the Cato Institute’s Project on Criminal
Justice and managing editor ofPoliceMisconduct.net. Follow him on Twitter at
@blanksslate.
As The Washington Post has
documented, few police officers are ever arrested, let alone prosecuted or
convicted, after officer-involved shootings and in-custody deaths. Although
there have been several recent high-profile cases in which officers have been
charged with crimes for shootings in the line of duty — most recently in
Baltimore and Fairfax County, Virginia — the number of officers arrested is
likely to remain negligible. Supreme Court precedent and certain aspects of
police culture and internal discipline combine to protect officers in
use-of-force cases that can preclude criminal investigation and arrest.
All of this supports police
officers who are involved in justified shootings. But it also makes it
difficult to impossible to convict officers of bad shootings. And because of
the protections afforded to public employees in general, and to police officers
especially, it often requires a criminal conviction to remove an officer from
the job. Consequently, bad cops are notoriously difficult to fire.
Consequently, we often see a small percentage of officers account for a huge
percentage of many policy agencies’ shootings and brutality complaints.
Three principle Supreme Court
decisions have essentially laid out the lethal force standard for police
officers in the United States. But in those decisions, the court also
inadvertently created a blueprint for officers to duck accountability. In
Graham v. Connor (1989), the Supreme Court said that any seizure of an
individual — including the use of force — must fall under the “objectively
reasonable” standard: Would an average police officer in the same position view
the officer’s actions as reasonable given all the information at the officer’s
disposal? Put another way, if the circumstances led an officer to reasonably
believe the suspect was armed and threatening, the officer would be deemed
justified in using lethal force, even if the person turned out to be unarmed.
Graham ties closely to another
ruling just a few years before, Tennessee v. Garner (1985). In that case, a
police officer fatally shot an unarmed burglar as he was fleeing the scene. The
Court said that because the burglar, Edward Garner, posed no direct threat to
the officers, nor did they have reason to believe he was a threat to the
public, the police were not justified in shooting him simply to prevent escape.
The last case, often overlooked,
is Garrity v. New Jersey (1967). It looks at how police agencies investigate
their own. Since law enforcement agencies are often responsible for their own
personnel oversight, police departments may compel officers to give statements about
an incident in order to determine whether or not there was any misconduct.
However, under Garrity, any compelled statements that would otherwise
incriminate the officer may not be admitted in criminal proceedings, due to the
Fifth Amendment protection against self-incrimination. As a result, police
officers are granted many procedural protections before questioning in shooting
incidents. Some of these protections have extended Garrity and been codified in
what have become known colloquially as “Law Enforcement Officers’ Bills of
Rights” (LEOBR).
LEOBR vary from jurisdiction to
jurisdiction where they exist, but generally they provide a litany of
privileges to officers that aren’t afforded to non-law enforcement suspects.
For example, there may be mandatory “cooling off” periods after a shooting,
guaranteeing the officer anywhere from 48 hours to 10 days before being
initially questioned about his version of events. (Sometimes, officers go
longer than that without being questioned.) Indeed, some of the emerging body
camera policy proposals, such as one considered in Los Angeles, would give
officers the opportunity to review the video evidence before giving a
statement, a privilege rarely afforded to citizens who aren’t police officers.
Maryland was the first state to
institute LEOBR and held hearings last month in which 15 LEOBR
proponents—police union representatives and leadership—testified in support the
law. The police unions denied that officers would or have ever used the
cooling-off periods to concoct a false story and collude with other officers to
cover up misdeeds.
Even in areas where LEOBRs are
not present, there is evidence that officers indeed collude with one another to
create false narratives about violent encounters with suspects.
University of Cincinnati officer
Ray Tensing reported that he was being dragged by a car he pulled over for a
missing tag when he fired his weapon point-blank into the face of Samuel
DuBose. His body-worn camera ended up undermining his story. But Tensing’s
report — that he felt he was in imminent danger, and thus in line with the
Supreme Court standard — was initially corroborated by fellow officers on the
scene. The internal policing cultural demand known as the “Blue Wall of
Silence” very often puts loyalty over honesty and personal integrity,
particularly when it comes to misconduct investigations. Without video, it is
unlikely Tensing would have been criminally prosecuted and, very possibly,
would still be on the job today.
Likewise, the initial reports in
the shooting death of Tamir Rice were unsupported by surveillance video. The
footage showed the officer, Timothy Loehmann, jumped out of the patrol car and
shoot the 12-year-old almost instantly. The more experienced officer who was
driving the car, Frank Garmback, was not cooperative with the county
prosecutor’s investigation, according to the 224-page prosecutor’s report.
Of course, not all officers
comply with the Blue Wall’s demand for silence. Fairfax County, Virginia
officer Adam Torres’s shooting of John Geer in 2013 was not caught on camera.
Furthermore, every officer and supervisor on the scene effectively described
the incident as a ‘bad shoot,’ despite Torres’s claims that Geer had “brought
both his hands down in a quick motion towards his waist.” Torres’s claim is a
variant of an oft-repeated explanation for officer-involved shootings that a
suspect ‘reached for his waistband.’ Why it took two years to fire and indict
Torres has yet to be disclosed by the Fairfax County police and prosecutor, but
his indictment shows that the Blue Wall is at least not completely impregnable.
The recent charging of Baltimore
police officer Wesley Cagle for shooting a burglar in December 2014 indicates
that some prosecutors are becoming more skeptical of police narratives after
use-of-force incidents. The facts of the Baltimore shooting are not yet clear.
But prosecutor Marilyn Mosby says Cagle shot Michael Johansen in the groin
after he made light of being shot for being non-compliant. Johansen survived,
and Cagle is facing five criminal counts, including attempted first-degree
murder.
Mosby determined that the other
two officers’ initial shooting of Johansen was justified, even though he was
unarmed. Cagle’s actions were not
justifiable because Johansen was on the ground and incapable of being an
imminent threat. Again, it is unclear why eight months passed between the
incident and Cagle’s indictment.
Sift through The Post’s database
of people killed by police officers in 2015, and you’ll begin to notice a
pattern: Most of those were armed and pointed or otherwise approached police
with a weapon drawn and ready to use. Undoubtedly, the accounts are true in
many instances. And it is unfair to suggest that officers usually create a
story that would justify an otherwise “bad shoot,” but it is unlikely that
they’re all entirely accurate.
But even if every single account
is true, the “objectively reasonable” standard provides legal cover for
shootings that can be plausibly justified under the law, but may not have been
necessary. Given the sheer number of killings recorded (686 to date in 2015),
and that more than 15 percent of those killed were unarmed (65) or had a toy
weapon (23), non-lethal methods of resolution or de-escalation could have saved
at least 88 lives.
Officers have a dangerous job and
sometimes have reason to fear for their safety. In 2015, 84 officers have died
in the line of duty, according to the Officers Down Memorial Page. Of those, 28 have died by non-accidental
gunfire or non-vehicular assault. The police have the right to protect
themselves, but they are also expected to assume a certain amount of risk in
order to protect the public. As several former officers and trainers wrote on a
popular police website, there is no officer safety exception to the Constitution.
As such, the mere possibility of danger should not precipitate a “shoot first,
ask questions later” police mindset on the streets. And yet it has.
Because we ask police officers to
put themselves in harm’s way, they should get some leeway for split-second
reactions in situations they perceived to be dangerous. Sometimes those
reactions will be wrong, and innocent people will die because of an honest
error in judgment that does not necessarily warrant prison time. However, in
those circumstances, public safety demands that officers who make those sorts
of mistakes even once be removed from the force and from policing. It doesn’t
seem unreasonable to say that if you kill an innocent person, we aren’t going
to wait to see if you do it a second or third time. The public shouldn’t have
to absorb that risk. And of course, officers who display gross negligence or
malice should be prosecuted.
Unfortunately, use-of-force
jurisprudence allows police officers to use lethal force at the first instant a
suspect flinches or moves in any way that could be construed (or recounted) as
hostile. The Blue Wall of Silence then encourages police to support their
colleagues’ accounts of events, even when they result in the unnecessary death
of an innocent. Laws and policies that protect police leave the door open for
less-than-forthright accounts of confrontations that more often than not end in
the police officer’s favor.
Changing the constitutional
standard for use of force would be difficult. The Supreme Court doesn’t generally
rewrite its rules on such issues, and it is very unlikely Congress would pass a
law to increase police officers’ criminal liability.
Although local officials can’t
change what’s legal, they can change what’s permitted as a matter of policy.
Mayors, city councils, and other policymakers can instruct police agencies to
change their rules guiding use of force to require more emphasis and training
for deescalation and peaceful conflict resolution.
Police contracts can be
negotiated to make it easier to terminate officers who shoot too quickly, even
if those contracts retain the same protections against criminal prosecution.
Termination should result for any officers named in lawsuits that
municipalities settle or lose in excessive force and wrongful death cases. At
minimum, such settlements should trigger administrative reviews of the officers
named and those cases should be noted in their personnel files.
The available data indicate that
current laws and policies make police-involved shootings too common, leaving
many families shattered and the general public less safe. Absent radical legal
change at the federal level, police departments and local governments can still
take steps to reduce the number of police shootings and remove the officers
responsible for unnecessary use of force from their ranks.
Whether or not a shooting is
legal is a separate question than whether it was right. We need to change
use-of-force policies to reflect that.
Jonathan Blanks is a research
associate at the Cato Institute’s Project on Criminal Justice and managing
editor of PoliceMisconduct.net.
